Citation Nr: 0403238
Decision Date: 02/04/04 Archive Date: 03/31/04
Citation Nr: 0403238
Decision Date: 02/04/04 Archive Date: 02/11/04
DOCKET NO. 00-18 067 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to an increased evaluation for hypertensive and
arteriosclerotic heart disease with unstable angina,
currently evaluated as 30 percent disabling, to include the
question of the proper effective date for a disability
evaluation.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
A. C. Mackenzie, Counsel
INTRODUCTION
The veteran served on active duty from July 1955 to June
1957.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a June 1999 rating decision issued by
the Department of Veterans Affairs (VA) Regional Office (RO)
in San Juan, the Commonwealth of Puerto Rico.
In a May 2001 decision, the Board denied the veteran's claim,
and he subsequently appealed this denial to the United States
Court of Appeals for Veterans Claims (Court). In October
2002, the Court reversed the Board's decision and ordered the
Board to assign an evaluation of not less than 60 percent for
the veteran's heart disease with unstable angina, and to
assign an effective date. Subsequently, on October 15, 2003,
the Board remanded this case back to the RO for further
action.
VACATUR
As indicated above, the Board remanded the veteran's claim
back to the RO on October 15, 2003. The Board, however, has
taken further notice of the fact that the Court, in October
2002, reversed the Board's prior decision and ordered that an
evaluation of not less than 60 percent be assigned for the
service-connected heart disease with unstable angina, and an
effective date. Given this, and to provide the veteran with
every consideration in the adjudication of his appeal, the
Board has determined that a decision on this claim is
appropriate at the current time. Accordingly, it is the
decision of the Board that the October 15, 2003 remand should
be, and is, VACATED.
In view of the Board's order vacating the October 15, 2003
remand, a new decision will be rendered on this issue
separately, and that decision will be entered as if the
October 15, 2003 Board remand had never been issued.
____________________________________________
WARREN W. RICE, JR.
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
FORM
JUN
2003
(RS)
4597
Page
1
CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
Citation Nr: 0327578
Decision Date: 10/15/03 Archive Date: 01/21/04
DOCKET NO. 00-18 067 DATE OCT 15, 2003
On appeal from the Department of Veterans Affairs Regional Office
in San Juan, the Commonwealth of Puerto Rico
THE ISSUE
Entitlement to an increased disability evaluation for hypertensive
and arteriosclerotic heart disease with unstable angina, currently
evaluated as 30 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Hallie E. Brokowsky, Associate Counsel
INTRODUCTION
The veteran had active service from July 1955 to June 1957.
This matter comes before the Board of Veterans' Appeals (BVA or
Board) on appeal from a June 1999 rating decision of the Department
of Veterans Affairs (VA) Regional Office in San Juan, Puerto Rico
(RO) which denied the veteran an increased disability evaluation
for his hypertensive and arteriosclerotic heart disease.
The Board issued a decision in May 2001, which denied the benefit
sought on appeal. The veteran subsequently appealed to the United
States Court of Appeals for Veterans Claims (Court). In October
2002, the Court issued a decision, which reversed the Board's
decision and remanded the veteran's claim. Of particular relevance,
the Court stated that the Board had incorrectly interpreted the
relevant rating criteria and, thus, incorrectly denied an increased
disability evaluation for his heart disorder. In particular, the
Court held that under 38 C.F.R. 4.104, Diagnostic Codes 7005 and
7007, there does not have to be both left ventricular dysfunction
and ejection fraction of 30 to 50 percent in order for a claimant
to be entitled to a 60 percent disability evaluation. Likewise, the
Court found that the veteran was entitled to such a 60 percent
disability evaluation because he had a mild left ventricular
impairment and an ejection fraction of 50 percent. Therefore, the
Court concluded that a remand was warranted in order to provide the
Board an opportunity to assign the veteran a disability evaluation
of at least 60 percent, and an effective date in accordance with
the law.
REMAND
The veteran essentially contends that the current disability
evaluation assigned for his heart disability does not accurately
reflect the severity of that disability. Specifically, the veteran
asserts that his disability should be evaluated as at least 60
percent disabling because he experiences chest pain and fatigue. A
review of the record leads the Board to conclude that additional
development is needed in this case before proceeding with appellate
disposition, as the record does not contain sufficient development
to make a decision on the veteran's claim at this time.
As a preliminary matter, the Board notes that while the veteran's
appeal was pending, there was a significant change in the law
pertaining to veteran's benefits. On November 9, 2000, the
President signed into law the Veterans Claims Assistance Act of
2000 (VCAA). See 38 U.S.C.A. 5100, 5102, 5103, 5103A, 5107 (2003).
The VCAA applies to all pending claims for VA benefits, and
provides that the VA shall make reasonable efforts to assist a
claimant in obtaining evidence necessary to substantiate his or her
claim for benefits. Changes potentially relevant to the veteran's
appeal include the establishment of specific procedures for
advising the claimant and his or her representative of information
required to substantiate a claim, a broader VA obligation to obtain
relevant records and advise claimants of the status of those
efforts, and an enhanced requirement to provide a VA medical
examination or obtain a medical opinion in cases where such a
procedure is necessary to make a decision on a claim.
A review of the claims file does not reflect that the veteran was
properly advised of the changes brought about by the VCAA, 38
U.S.C.A. 5102, 5103, 5103A, and 5107. The Board notes the record is
entirely negative for evidence of consideration of the provisions
of the VCAA by the RO and the veteran's claims were certified to
the Board without the veteran being given appropriate notice of his
rights and responsibilities and VA's responsibilities under the
VCAA. Recent decisions by the U.S. Court of Appeals for Veterans
Claims (Court) have mandated that VA ensure strict compliance with
the provisions of the VCAA. See Quartuccio v. Principi, 16 Vet.
App. 183 (2002). The Court has indicated that the VA must satisfy
its duty to notify the veteran as to what is needed to substantiate
his claim and its duty to
notify the veteran of VA's responsibilities in assisting the
veteran in the development of his claim of entitlement to an
increased disability evaluation for hypertensive and
arteriosclerotic heart disease. For example, the Board observes
that notification of the regulations, without a discussion of the
necessary evidence to be obtained is insufficient for purposes of
compliance with the VCAA. As such, the record is entirely negative
for evidence of consideration of the provisions of the VCAA by the
RO and the veteran's claim was certified to the Board without the
veteran being given appropriate notice of his rights and
responsibilities and VA's responsibilities under the VCAA with
regard to his claim of entitlement to an increased disability
evaluation for hypertensive and arteriosclerotic heart disease.
However, the Board cannot correct this deficiency. See Disabled
American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339
(Fed. Cir. 2003).
While in theory the Board has the authority to consider law not
considered by the RO, a recent case from the United States Court of
Appeals for the Federal Circuit (Federal Circuit) invalidated a
portion of a VA regulation the Board utilized to notify a claimant
of the VCAA pursuant to 38 U.S.C.A. 5103. See Disabled American
Veterans, et. al. v. Secretary of Veterans Affairs, supra. In that
case, the Federal Circuit held that 38 C.F.R. 19.9(a)(2)(ii), which
required the Board to provide the notice required by 38 U.S.C.A.
5103(a) and provide a claimant not less than 30 days to respond to
the notice, was invalid because it was contrary to 38 U.S.C.A.
5103(b), which provided a claimant one year to submit evidence.
Therefore, at this point in time, the Board cannot provide notice
to the appellant of the provisions of the VCAA.
In addition, the Board notes that, in a decision promulgated on
September 23, 2003, Paralyzed Veterans of America v. Secretary of
Veterans Affairs. No. 02-7007, - 7008, -7009, -7010 (Fed. Cir.
Sept. 22, 2003), the Federal Circuit invalidated the 30-day
response period contained in 38 C.F.R. 3.159(b)(1) as inconsistent
with 38 U.S.C.A. 5103(b)(1). The Federal Circuit made a conclusion
similar to the one reached in Disabled American Veterans, supra
(reviewing a related Board regulation, 38 C.F.R. 19.9). The Federal
Circuit found that the 30-day period provided in 38 C.F.R.
3.159(b)(1) to respond to the VCAA duty to notify is misleading and
detrimental to claimants whose claims are prematurely denied short
of the statutory one-year period provided for response. Since this
case is being returned to the RO in order to inform the veteran of
the information or evidence necessary to substantiate his claim and
which evidence the VA would seek to provide and which evidence the
veteran was to provide, the RO will be able to provide notice
consistent with this recent Federal Circuit Court case, including
informing the veteran that a full year is allowed to respond to a
VCAA notice.
As a result of the change in the law brought about by the VCAA and
the lack of proper notification of that change to the veteran, the
veteran's claim must be remanded to the RO to ensure that the
veteran is given proper notice of his rights and responsibilities
under the VCAA and to ensure that all duty to notify and duty to
assist obligations of the VA are met.
Therefore, it is the Board's opinion that in order to give the
veteran every consideration with respect to the current appeal and
to ensure due process, further development of the case is
necessary. Accordingly, this case is REMANDED for the following
action:
1. Review the Court's October 2002 decision.
2. Review the claims file and ensure that all notification and
development action required by the VCAA is completed under 38
U.S.C.A. 5102, 5103, 5103A, and 5107 (West 2002), including written
notice of the evidence, if any, the veteran is expected to provide
in support of his claim and the evidence, if any, that the RO will
obtain for him. See Quartuccio v. Principi, 16 Vet. App. 183, 187
(2002). Any notice given, or action taken thereafter, must comply
with the holdings of Disabled American Veterans v. Secretary of
Veterans Affairs, supra and Paralyzed Veterans of America v.
Secretary of Veterans Affairs, supra.
In particular, the RO is requested to send the veteran notice of
the provisions of the VCAA, the kind of information and evidence
needed from him, and what he could do to help his claim, as well as
his and the VA's responsibilities in obtaining evidence. He should
be given an opportunity to supply additional information, evidence,
and/or argument and to identify additional evidence for VA to
obtain regarding the veteran's claim of entitlement to an increased
disability evaluation for hypertensive and arteriosclerotic heart
disease. The RO should then obtain any referenced records. All new
evidence and/or arguments must be associated with the veteran's
claims folder.
2. The RO should review the veteran's claim in light of all
evidence associated with the claims file subsequent to the transfer
of the claims file to the Board. If the benefit sought is not
granted, the veteran and his representative should be furnished a
supplemental statement of the case and be afforded a reasonable
opportunity to respond before the record is returned to the Board
for further review.
The purpose of this remand is to obtain additional development, and
the Board does not intimate any opinion as to the merits of the
case, either favorable or unfavorable at this time. The veteran is
free to submit any additional evidence and/or argument he desires
to have considered in connection with his current appeal. See
Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is
required of the veteran until he is notified.
This claim must be afforded expeditious treatment by the RO. The
law requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See The Veterans'
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Benefits Improvements Act of 1994, Pub. L. No. 103-446, 302, 108
Stat. 4645, 4658 (1994), 38 U.S.C.A. 5101 (West 2002)(Historical
and Statutory Notes). In addition, VBA's ADJUDICATION PROCEDURE
MANUAL, M21-1, Part IV, directs the Ros to provide expeditious
handling of all cases that have been remanded by the Board and the
Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
WARREN W. RICE, JR.
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. 7252 (West Supp. 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States Court
of Appeals for Veterans Claims. This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal. 38 C.F.R. 20.1100(b) (2002).
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